Back in January Jim Bopp filed a motion seeking to expedite consideration of the Citizens United case before the Supreme Court (see docket; for background on the case see Lyle Denniston’s analysis at SCOTUSblog). The Court failed to rule on the motion at the last two conferences, and so far it appears that there have been no orders today coming from the Court’s conference. What does this mean for the Citizens United case?
First, I think it is clear that the Court is not going to expedite the case for consideration this term. We are getting late in the term and the Court has had three conferences to make such a ruling. It hasn’t happened and the Court is already setting cases for next term. If the Court was going to act on expedition, it would have done so already.
What I expect is most likely happening is that the Court is going to issue a summary affirmance of the order below accompanied by a dissent from Justice Thomas and perhaps one or more other Justices. I have seen this pattern before of a relisting of cases up on appeal (not cert) that ultimately led to an affirmance and dissent.
Here are the three reasons why I expect a summary affirmance in the case. (1) The issue raised in the case involves creating an exemption from McCain-Feingold’s rules requiring disclosure of electioneering communications, relying on the recent WRTL case. In McConnell, 8 of the 9 Justices on the Court (Justice Thomas dissenting) voted to uphold those disclosure rules. Even with the replacement of Rehnquist and O’Connor with Roberts and Ailto, it looks like there should be at least six Justices who are comfortable with the rule requiring that those who fund tv or radio ads run close to the election featuring candidates for federal office disclose their contributions and spending. (2) The case comes up on a request for a preliminary injunction. Even if some members of the Court wanted to consider the issue after final judgment, the Court will give a lot more discretion to a lower court’s decision to grant or withhold a preliminary injunction. (3) Even for Justices who believe that a “WRTL”-type exemption should apply to disclosure of the funding of ads for which there is “no reasonable interpretation” of the ads other than as an advertisement supporting or opposing a candidate for federal office, it is hard to see the ads for the anti-Clinton movie as fitting under the exemption. One of the lower court judges literally laughed when told the ad was about the issue of Clinton being a “European-style socialist” and not an ad against Clinton’s election.
If there is to be a summary affirmance, I expect a dissent. The reason is that unlike denials of cert., summary affirmances have precedential value. It means the lower court got the result right (though not necessarily the reasoning).
We may know more on Monday.